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Friday, July 31, 2015

A new Politico article suggests that Congress is in the midst of a "summer fling With marijuana," and that suggesion only reinforces my view that marijuana should definitely be a topic raised during next week's big GOP debate in Cleveland. And any and everyone interested in the modern politics of modern marijuana reform — which is burning hot at the local, tribal, state and international levels as well as in Congress — should be sure to check out my efforts to keep on top of some of the top stories at Marijuana Law, Policy & Reform. Here are links to some recent posts of note from MLP&R:

Sunday, July 05, 2015

Updates on pot prohibition reforms at end of weekend celebrating freedom

It seems only fitting to bring a July Fourth weekend to a close by linking to some recent posts of note from Marijuana Law, Policy and Reform that provide evidence of freedom on the march in a particularly notable arena:

Sunday, June 28, 2015

When might a modern marijuana reform issue get on the SCOTUS docket?

The question in the title of this post is prompted not only by the fact that the Supreme Court is expected to issues its final opinions of the current Term on Monday, but also because some commentators have noticed parallels between quickly changing voter opinions and state laws on gay marriage and quickly changing voter opinions and state laws on marijuana. Of course, the SCOTUS already has before it the challenge brought directly by Oklahoma and Nebraska assailing the spill-over harms from Colorado's reforms. But I believe most informed Court-watchers expect that the Justices will refuse to hear the suit brought by Colorado's neighbors

While we all await the final rulings from SCOTUS on Monday and anticipate some future SCOTUS Term with cases addressing new modern marijuana reforms, here are some recent posts of note from Marijuana Law, Policy and Reform (including a few reporting on events that could generate some significant litigation):

Tuesday, June 23, 2015

Is the initiative process a wise way to move forward with criminal justice reform?

Those who know me well know that I have become, generally speaking, big fan of direct democracy and not really that much of a fan of representative democracy. This affinity is driven in part by the efficacy of direct democracy in driving forward the national marijuana reform movement, but it is driven more fundamentally by the reality that direct democracy gets the electorate talking about (and the media reporting on) substantive policies and public priorities. In contrast, as we see now most every election cycle, representative democracy too often gets the electorate talking about (and the media reporting on) personal scandals and public personas.

Because I am a big fan of direct democracy, I was especially excited to see this recent Washington Post article headlined "ACLU growing political program, plans ballot initiatives." Here are excerpts:

The American Civil Liberties Union, looking to increase its effectiveness, is launching a major political advocacy program. The group has raised or received commitments for $80 million to back up a 501(c)(4) and announced on Friday that veteran Democratic operative Karin Johanson has been hired as its first ever national political director.

Johanson, who was executive director of the Democratic Congressional Campaign Committee when the party took control of the House in 2006, will run the ACLU’s Washington, D.C. office and spearhead several ballot initiative campaigns in 2016, focused on criminal justice reform and banning discrimination against the LGBT community....

“It has become increasingly clear that we can’t rely upon litigation or old-style lobbying,” Romero said in an interview. “The gridlock in Washington is suffocating … Sitting down with legislators, walking through the pros and cons of a particular bill and trying to cajole them to do the right thing increasingly draws limited dividends. The place to light a fire under them is in their home district.”

The ACLU will soon pick three states with high incarceration rates and then sponsor ballot initiatives next year aiming to force sentencing reform. Five states are being considered, but they’ll pick just three so that the group can go all-in and score some tangible victories.

Criminal justice is a hot issue right now, with backing from liberals, libertarians like the billionaire Koch brothers and fiscal conservatives. “This is not a reform effort focused on the Northeast liberal corridor,” said Romero. “We’re going to the tough states, the Deep South.”

For various reasons, I am pleased to learn that the ACLU is looking to bring the arguments for criminal justice reform straight to the people through the initiative process. But I also know there are many people interested in criminal justice reform who have different views on the best means to reform ends, and I would be eager to hear in the comments any reasons why I should not be too excited about seeking criminal justice reform through direct democracy.

Wednesday, June 17, 2015

As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?

The question in the title of this post captures some notable news from the GOP campaign trail this week. The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register." Here are the details from that report:

Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....

Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.

The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.

But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:

[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....

From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”

Tuesday, June 16, 2015

Notable new data and other recent posts from Marijuana Law, Policy and Reform

I am pleased to see that the growing state, national and interenation marijuana reform movement is leading to much more research on marijuana use and law enforcement activities (in Colorado and elsewhere). I have revently reported on some notable new research at Marijuana Law, Policy and Reform, and here are links to those posts (and a few other recent posts of note):

Friday, June 12, 2015

"Marijuana & Ohio: Past, Present, Potential"

The title of this post is the title of the lengthy research report that was formally released (and extensively discussed) yesterday at the Ohio Marijuana Policy Reform Symposium which I help organize yesterday. The report and related information about Marijuana Policies of Ohio Task Force that released the report can be found at this webpage.

The report is much longer and more data-heavy than anything else previously written about marijuana reform in Ohio, but this AP article discussing its findings also highlights why the report has also become the subject of criticism. The AP piece is headlined "Economics of effort to legalize pot in Ohio in crosshairs," and here are excerpts:

A Republican prosecutor who is heading a task force on marijuana legalization in Ohio said the analysis of potential impacts released by his group Thursday presents a balanced look at the issue, a claim questioned by the state auditor. Hamilton County Prosecutor Joe Deters was asked to chair the Marijuana Policies of Ohio Taskforce by ResponsibleOhio, the group advancing a legalization amendment toward the November ballot.

He said ResponsibleOhio has allowed experts on his task force the editorial freedom to put together a “straightforward assessment” of how legalization might affect law enforcement, public safety, public health and Ohio’s overall economy. “Our report doesn’t make recommendations, and it doesn’t pull any punches,” Deters said. “We’ve made a concerted effort to remain objective, take an even-handed approach and lay out both the good and the bad of legalization.”

The report estimates legalization would create 34,791 jobs in Ohio representing $1.6 billion in labor income in connection with nearly $7 billion in output from the cultivation, extraction, processing and sale of marijuana. The report said research shows legalization doesn’t lead to drastic increases in crime, in adult or teen marijuana use, or in workplace injuries -- a finding Auditor Dave Yost called rosy at best.

“There are unquestionably going to be health and safety impacts,” Yost, an opponent of legalizing marijuana, said. “This task force was stacked like a BLT. Really, in 30 days? This debate has been going on for 50 years and they did a comprehensive study in 30 days?”

The report came the same day a committee of the Ohio Constitutional Modernization Commission was reviewing draft language that would amend Ohio’s constitution to ban changes to the constitution that create monopolies or further the economic interests of select individuals. It comes partly in reaction to a piece of ResponsibleOhio’s proposal that would establish 10 grow sites, some of which investors have already purchased.

Because I spent all of yesterday at the Ohio Marijuana Policy Reform Symposium talking about this Taskforce report, I am not going to add extra commentary here yet (though lots will follow before too long at Marijuana Law, Policy and Reform). But I am hopeful that the report can help advance public information and understanding as the debate over marijuana reform heats up in Ohio and nationwide in the months ahead. Indeed, a letter from the Chair of the Taskforce, Hamilton County Prosecutor Joe Deters, stresses this point at the front of the document:

The question of changing Ohio’s approach to marijuana policy may soon be put before voters -- most likely on the November 2015 ballot. The rapid pace of change in marijuana policy across the country, however, has made it difficult to keep up with the experiences, research, and practices occurring in different states. Political arguments from all sides of this debate have made it even more challenging to separate fact from opinion....

Ohio cannot afford to make decisions about marijuana policy and law based on unsubstantiated and often unsupported talk on both sides of the issue. Ohioans need and deserve an honest and in-depth assessment of the positive and negative impacts that ending marijuana prohibition may have, so they can make up their own minds....

I look forward to continuing this important discussion throughout Ohio in the coming weeks and months.

Thursday, June 11, 2015

Sooooo excited for Ohio Marijuana Policy Reform Symposium

As I mentioned in this post, not only has my own Ohio lately become a hot state for dynamic conversations about marijuana reform, I have had the honor and privilege of helping bring together an interesting groups of speakers for today's Ohio Marijuana Policy Reform Symposium taking place at The Ohio State University Moritz College of Law. (Because there is no charge for attending, I encourage anyone interested to make it over to the College of Law ASAP as the panels start at 10:30am.)

I have the honor and privilege of giving brief opening remarks for the event, and I plan to start my remarks this way:

Marijuana reform is a very serious issue. But, until recently, it has been hard to get serious people to take this issue very seriously. Disconcertingly, it seems elected officials are especially eager to ignore (or even make jokes) about the very serious issue of marijuana reform even as more and more citizens and voters, young and old, healthy and sick, keep saying in polls and keep showing on election day that they are troubled by blanket criminal prohibition and are eager to have significant legal reforms seriously considered.

For those who share my interest and excitement for these issues but unable to get to Ohio State, you can spend some time checking out these notable recent postsfrom Marijuana Law, Policy and Reform:

Monday, June 08, 2015

Can any significant federal prison sentence truly be "reasonable" for any of the Kettle Falls Five marijuana defendants?

The question in the title of this post is a serious question I have in light of the remarkable federal marijuana prosecution that reaches sentencing in Washington state later this week. The case involves the so-called "Kettle Falls Five," a group of medical marijuana patients subject (somewhat mysteriously) to aggressive federal criminal prosecution. Regular readers may recall prior posts about the case; this new lengthy Jacob Sullum Forbes piece, headlined "In A State Where Marijuana Is Legal, Three Patients Await Sentencing For Growing Their Own Medicine," provides this review and update:

During their trial at the federal courthouse in Spokane last March, Rhonda Firestack-Harvey and her two fellow defendants—her son, Rolland Gregg, and his wife, Michelle Gregg—were not allowed to explain why they were openly growing marijuana on a plot in rural northeastern Washington marked by a big green cross that was visible from the air. According to a pretrial ruling, it was irrelevant that they were using marijuana for medical purposes, as permitted by state law, since federal law recognizes no legitimate use for the plant. But now that Firestack-Harvey and the Greggs have been convicted, they are free to talk about their motivation, and it might even make a difference when they are sentenced next Thursday.

Federal drug agents raided the marijuana garden, which was located outside Firestack-Harvey’s home near Kettle Falls, in 2012. In addition to the three defendants who are scheduled to be sentenced next week, the U.S. Attorney’s Office for the Eastern District of Washington charged Firestack-Harvey’s husband, Larry Harvey, and a family friend, Jason Zucker. Dubbed the Kettle Falls Five, all had doctor’s letters recommending marijuana for treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Last February prosecutors dropped the charges against Harvey because he has terminal cancer. Zucker, who had a prior marijuana conviction, pleaded guilty just before the trial and agreed to testify against the other defendants in exchange for a 16-month sentence, which was much shorter than the 15-year term he could have received in light of his criminal history....

In the end, after hearing testimony for five days and deliberating for one, the jurors acquitted the defendants of almost all the charges against them, which could have sent them to prison for 10 years or more. “They all saw what was going on,” Telfeyan says. “They understood what the facts were, and they came back with a verdict exactly consistent with what actually happened, which was just a family growing medical marijuana for their own personal use.”

The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys’ hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana. The one remaining charge — cultivation of more than 50 but fewer than 100 plants — does not carry a mandatory minimum penalty, which gives Rice broad discretion when he sentences Firestack-Harvey and the Greggs next Thursday. He can even consider the reason they were growing marijuana.

“But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today,” the defense says in a sentencing memo filed last week [available here]. “Due to the exemplary contributions each family member has made to this society, their lack of criminal records, and the unique role state-sanctioned medical authorizations played in this case, Defendants respectfully seek a probationary sentence with no incarceration.”

The federal probation office recommended sentences of 15 to 21 months, while the prosecution is seeking 41 to 51 months [gov sentencing memo here], based mainly on allegations that were rejected by the jury, including cultivation in 2011 as well as 2012. To give you a sense of how realistic the government’s assumptions are, it estimates that each plant grown in 2011 produced more than a kilogram of marijuana. As the defense notes, that figure “flies in the face of both empirical reality and legal precedent,” since “numerous courts have recognized that a marijuana plant cannot yield anywhere near 1 kilogram of usable marijuana.” At one point in its sentencing memo, the prosecution even claims the defendants somehow managed to produce “1000 kilograms per plant.” I assume that’s a typo, but who knows? The government also thinks the 2012 harvest should be measured by the weight of the plants, including leaves, stems, water, and clinging dirt.

The prosecution’s insistence that Firestack-Harvey and the Greggs deserve to spend at least three and a half years in prison is puzzling, as is its willingness to posit super-productive, science fictional marijuana plants in service of that goal. But this case has been a puzzle from the beginning.

I assume that this federal prosecution started because federal authorities thought the defendants here were doing a whole lot more than what the feds were able to prove in court. For that reason, I can sort of understand why the feds started this prosecution way back in early 2012. But now, three years later, with the defendants acquitted on most charges (and now with lots of persons selling lots of recreational marijuana within the state), I have a very hard time understanding just how the feds can think a lengthy prison sentence is "not greater than necessary" for these defendants in light of the nature and circumstances of the offense and the history and characteristics of these defendants.

I have in the excerpt above links to the parties' sentencing briefs, and I sincerely seek input on the question in the title of this post in light of some of the arguments made thereing. Notably, the government's sentencing memo is only focused on dickering over the applicable guideline range; it does not appear to make any formal arguments for a signficant prison sentence in light of all the 3553(a) sentencing factos that judges now must consider after Booker. So I suppose it is still possible that even the government will, come the actual sentencing later this week, acknowledge that this remarkable case does not justify any significant federal prison sentence for any of the defendants with no criminal history. But if the government seeks a prison term, and if the judge imposes a prison term, I would be ready and eager to argue on appeal for these defendants that such a punishment cannot possibly be reasonable in light of all the sentencing commands Congress put into 3553(a).

Saturday, June 06, 2015

How has, can, should and will marijuana reform impact the work of defense attorneys?

The question in the title of this post is the central topic of a presentation I am honored to be giving today at the Cuyahoga Criminal Defense Lawyers Association's annual meeting.

As is often true when I speak to a group of experienced defense attorneys, I expect I will learn more from the assembled participants than I am likely to teach them. But, in part because Ohio has not (yet) reformed its marijuana laws in any way, I am cautiously hopeful I can give the group some useful insights about the inevitability of legal and practical uncertainties, especially in the criminal law arena, as to what really happens in a state after it formally repeals blanket marijuana prohibition in some way.

Based on case rulings, policy reports and conversations with lawyers in the field in states like Colorado, I have a general sense of various possible answers to the multi-dimensional query in the title of this post. But I would be especially eager to hear from any and all persons in reform states if they have distinctive experiences or thoughts in reaction to my question.

Q: What do the Hamilton County Prosecuting Attorney and the Vicente Sederberg Professor of Marijuana Law and Policy have in common?

As I have noted before, my own Ohio has lately become a hot state for dynamic conversations about marijuana reform. And I have had the honor and privilege of helping bring together an interesting groups of speakers for what should be an informative and interest event next week at my own Moritz College of Law. This registration page provides more information about some of the speakers and provides a brief preview:

The Marijuana Policies of Ohio Taskforce, chaired by Hamilton County Prosecutor Joe Deters, will present the findings of its comprehensive research at a symposium on June 11 hosted at The Ohio State University Moritz College of Law. The Taskforce’s research report assesses and analyzes proposed marijuana legalization initiatives in four key areas - public safety and law enforcement, the economy, public health, and regulatory impact. The symposium will also include a panel discussion with national recognized experts in marijuana policy and law.

A press briefing will precede the event. For more information, please contact Kathy Berta at kathy @ rstrategygroup.com

As of this writing, there is no charge for attending this event, but space in the auditorium can get limited so I highly encourage everyone interested in attending to pre-register via this webpage ASAP.

Thursday, June 04, 2015

Rounding up recent posts of note from Marijuana Law, Policy and Reform

I am likely to be off-line from much of the rest of today because of the official start of an unofficial holiday weekend in my neighborhood. So while I am spending some time watching the world's best players on well-manicured grass, readers interested in reform developments surrounding another type of grass might want to check out some recent posts of note from Marijuana Law, Policy and Reform. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans:

I have highlighted the last two items on this list because I continue to believe Ohio is going to be an especially exciting state to watch closely in the next few months. And I think the "Ohio Marijuana Policy Reform Symposium" taking place at The Ohio State Moritz College of Law a week from today is likely to advance in a thoughtful way the dynamic conversations about marijuana reform now taking place in the Buckeye State.

Tuesday, May 19, 2015

Some recent posts of note from Marijuana Law, Policy and Reform

I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform in a few weeks. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans:

Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings. I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Friday, May 08, 2015

This Des Moines Register article (and video) details some notable new comments on criminal justice reform and drug policy from a notable new GOP Prez candidate. Here are excerpts:

The nation should stop overreacting to illegal drug use and stop doling out jail sentences that are way too long, Republican presidential candidate Carly Fiorina said in Iowa on Thursday.

"We know that we don't spend enough money on the treatment of drug use," said Fiorina, former chief executive of Hewlett-Packard. "When you criminalize drug abuse, you're actually not treating it. We had a daughter who died of addictions, so this lands very close to home for me." Fiorina's daughter Lori, a drug and alcohol addict, died in 2009.

The "three strikes and you're out" law doesn't work well, and all the drug laws affect African-Americans more than others, Fiorina told The Des Moines Register's editorial board during an hourlong meeting.

"I don't think that overreacting to illegal drug use is the answer," said Fiorina, who officially entered the 2016 race on Monday and is the only woman in the GOP field. She has never held elected office, but ran unsuccessfully for U.S. senator in California.

Asked whether she favors decriminalizing marijuana, Fiorina answered: "No, I do not think we should legalize marijuana."...

Asked whether, as president, she'd direct the U.S. attorney general to enforce federal drug laws in states such as Colorado, Alaska, Washington and Oregon, Fiorina said she wouldn't. "I believe in states' rights," she said. "They're within their rights to legalize marijuana, and they're conducting an experiment I hope the rest of the nation is looking closely at."

Wednesday, May 06, 2015

How many federal prison years are being served by defendants who (plausibly?) claimed compliance with state medical marijuana regimes?

The question in the title of this post is prompted by this new article from Michigan headlined "West Michigan man sent to prison for purported medical marijuana grow operation." Here are the basics of this story with some follow-up data/questions:

One of the two leaders of a medical marijuana grow operation has been sentenced to 14 years in federal prison. Phillip Joseph Walsh, 54, was sentenced Monday by U.S. District Judge Paul Maloney in Kalamazoo. Betty Jenkins, described as his "life partner" in court records, will be sentenced June 29.

The Kent County residents were convicted at trial of running a marijuana grow operation that prosecutors say brought in $1.3 million. The two, along with eight others, including a doctor who authorized patients for use of medical marijuana, were arrested last year for growing marijuana in multiple places in West Michigan.

The government contended that much of the marijuana grown was sold outside of Michigan. Jenkins was considered the leader of the organization. The defendants argued they acted within the guidelines of Michigan's medical marijuana law but were not allowed to use the law as a defense to the federal charges.

Kent County Area Narcotics Team and U.S. Drug Enforcement Administration used multiple search warrants to raid numerous properties, including apartment buildings in Gaines Township. Police seized 467 marijuana plants and 18 pounds of processed marijuana.

Defense attorney Joshua Covert said his client, a father of four daughters, was "very nervous" after reviewing advisory sentencing guidelines that called for 151 to 188 months in prison. He said that Walsh has been a good, caring father and a hard worker and has led a productive life. "Mr. Walsh and his life partner, Ms. Jenkins, lived a comfortable but certainly not lavish or extravagant life that was financed by rental income from property Ms. Jenkins obtained through her divorce," the attorney wrote in a sentencing memorandum.

"The endeavor of manufacturing marijuana was not particularly successful for Mr. Walsh from a financial standpoint because it proved to be difficult and expensive to manufacture marijuana," he wrote.... He said his client "is not seeking sympathy or pity" but asked for leniency "given the relaxed attitude toward marijuana nationwide and specifically Michigan in regards to marijuana."

Assistant U.S. Attorney Mark Courtade said Walsh and Jenkins began manufacturing marijuana on Forest Hill Avenue SE in 2010. Walsh hired a man to help with the grow operation before both were convicted for their roles. The other man quit, "but Walsh and Jenkins carried on, unfazed," Courtade said.

"Defendant Walsh developed the 'marketing scheme' that ensnared many of the codefendants in this case," the prosecutor wrote.... He said that Walsh tried to insulate himself by staying he was only "'building grow rooms' ... his real motivation was far more nefarious."

He said Walsh grew marijuana for profit, with some sold in Ohio, some in Rhode Island. Courtade also said that Walsh could not document wages he earned — he reported remodeling and roofing homes — but he managed to hired his own attorneys, pay for a co-defendant's expert witnesses and build numerous manufacturing operations. He recommended a sentence within guidelines.

This story of a lengthy federal prison sentence for major marijuana dealing in a medical marijuana state itself highlights the challenges of coming up with a satisfactory answer to the question in the title of this post. The defendants here were apparently quick to claim that they were acting in accord with Michigan state medical marijuana laws, but the facts reported suggest little basis for this defense claim of state-law compliance.

That said, I know there are at least a handful (and perhaps more than a handful) of the roughly 5000 federal prosecutions for marijuana trafficking sentenced in federal courts each year involving defendants who truly have a plausible claim to being in compliance with state medical marijuana laws. A low "guestimate" that an average of 10 federal marijuana defendants in each of the last 10 years have been been sentenced to an average of 10 years in federal prison for medical marijuana activities would, in turn, suggest that 1000 years in federal prison are being served by defendants who plausibly claimed compliance with state medical marijuana regimes.

That is a lot of federal prison time (which would be costing federal taxpayers roughly $30 million because each prison year costs roughly $30,000). And I have an inkling the number could be higher.

Monday, May 04, 2015

SCOTUS asks for views from US Solicitor General on original lawsuit between states over marijuana reform

Via this order list, the US Supreme Court called for the views of the Solicitor General in the original case of Nebraska and Oklahoma v. Colorado. That is the case, as readers may recall from posts here and here back in December, in which two states filed suit directly in the Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."

I am not sure what the usual timelines tend to be for submission of CVSG briefs during this time of year, but I would think this request from the Justices will just now further slow the resolution of a suit that was filled five months ago and will remain in limbo now until the Solicitor General weighs in.

Saturday, May 02, 2015

Considering clemency for federal marijuana offenders and other posts of note at Marijuana Law, Policy and Reform

This new post about a new commentary headlined "Do marijuana prisoners deserve amnesty?" reminded me that I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform. Here is an abridged list of April MLP&R posts that might be of special interest to sentencing fans:

Wednesday, April 22, 2015

Is resignation of current DEA head a very big moment for federal marijuana policy?

The question in the title of this post is prompted by a number of stories I have seen in the wake of yesterday's news that Michele Leonhart is resigning as Administrator of the Drug Enforcement Administration. Here are links to some of these stories:

From The Hill here, "Marijuana advocates push for new pot-friendly DEA chief"

The last story linked here highlights what will really determine the answer to the question in the title of this post: if President Obama nominates somebody for this position who expresses openness to federal marijuana reforms and a serious commitment to a more public-health oriented approach to all drug enforcement issues (e.g., Dr. Sanjay Gupta?), the transition at the top of DEA could end up being a very big deal.

Thursday, April 16, 2015

Distinct comments on marijuana policy from Prez Obama and one wanna-be successor

Two notable new stories about notable new marijuana comments made by notable chief executives caught my eye this morning. Here are the headlines, links and the basics:

From The Daily Callerhere, "Obama Reiterates Enthusiastic Support Of Medical Marijuana":

In a CNN special to be aired on Sunday, not only will President Barack Obama state his full support of medical marijuana, he’ll also advocate for alternative models of drug abuse treatment which don’t involve incarceration. The television special, called “Weed 3,” features CNN’s chief medical correspondent Sanjay Gupta, a neurosurgeon who came to support medical marijuana after reviewing the evidence. This time around, he’ll be delving into the politics of medical marijuana research and interviewing President Barack Obama, according to an email obtained by The Daily Caller News Foundation.

From Hot Airhere, "Chris Christie: As president, I’ll enforce federal drug laws in states where selling marijuana is legal":

Even within the GOP, which remains skeptical of liberalization on drugs, a majority thinks the feds should defer to the states. You can indeed be anti-marijuana and pro-federalism. Screw that, says Christie. When it comes to deciding whether marijuana’s too dangerous for the citizens of a state to sell, he’ll happily trump your state legislature and local PD. And to think, they call him a big-government Republican.

It is both notable and telling, of course, that a President often accused of trampling state and individual rights is here saying he respects on-going state reforms, while a state Governor representing from a party that claims it favors a smaller federal Government is asserting he wants to make sure states do not even try to forge a different part with respect to the war on drugs. And this is why I find marijuana law, policy and reform so politically interesting: it help reveal, in a way few other issues do, just which particular policies and which particular principles are ultimately most important to which particular politicians.

Thursday, April 09, 2015

Effective coverage of legal land mine created by DOJ spending restriction in medical marijuana cases

As previously noted in posts here and elsewhere, a provision buried in H.R. 83, the 1700-page Cromnibus spending bill passed late last year, directed the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes. Today, the New York Times has this extended and informative discussion of this federal congressional directive and its uncertain meaning and impact four months after its enactment. The article is headlined "Legal Conflicts on Medical Marijuana Ensnare Hundreds as Courts Debate a New Provision," and here are excerpts:

In December, in a little­-publicized amendment to the 2015 appropriations bill that one legal scholar called a “buried land mine,” Congress barred the Justice Department from spending any money to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

In the most advanced test of the law yet, [medical marijuana defendant Charles] Lynch’s lawyers have asked the Ninth Circuit Court of Appeals to “direct the D.O.J. to cease spending funds on the case.” In a filing last month, they argued that by continuing to work on his prosecution, federal prosecutors “would be committing criminal acts.”

But the Justice Department asserts that the amendment does not undercut its power to enforce federal drug law. It says that the amendment only bars federal agencies from interfering with state efforts to carry out medical marijuana laws, and that it does not preclude criminal prosecutions for violations of the Controlled Substances Act.

With the new challenge raised in several cases, federal judges will have to weigh in soon, opening a new arena in a legal field already rife with contradiction....

The California sponsors of the December amendment, including Representatives Sam Farr and Barbara Lee, both Democrats, and Representative Dana Rohrabacher, a Republican, say it was clearly intended to curb individual prosecutions and have accused the Justice Department of violating its spirit and substance. “If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal, then they are the ones who are the lawbreakers,” Mr. Rohrabacher said.

Mr. Farr said, “For the feds to come in and take this hard­line approach in a state with years of experience in regulating medical marijuana is disruptive and disrespectful.” The sponsors said they were planning how to renew the spending prohibition next year.

Sunday, April 05, 2015

March has been a crazy-busy month for not only basketball, and my own busy schedule has prevented me from keeping up with many March marijuana reform developments here or at Marijuana Law, Policy and Reform. But a brief respite provided by a holiday weekend enables me to highlights some notable posts from ML&P which at least details some of the March marijuana reform madness:

Thursday, March 26, 2015

While the impact, both good or bad, of marijuana law reform is now widely discussed and debated, there is still relatively little hard reliable data about the public health and economic consequences of these reforms. But this new report from the Drug Policy Alliance, headlined "Marijuana Arrests in Colorado After the Passage of Amendment 64," highlights that legalization in one state has had a profound impact on arrest data. This DPA press release provides an overview and summary of the report, and here are excerpts:

The report compiles and analyzes data from the county judicial districts, as well as various law enforcement agencies via the National Incident Based Reporting System (NIBRS). The report’s key findings include:

Since 2010, marijuana possession charges are down by more than 90%, marijuana cultivation charges are down by 96%, and marijuana distribution charges are down by 99%.

The number of marijuana possession charges in Colorado courts has decreased by more than 25,000 since 2010 – from 30,428 in 2010 to just 1,922 in 2014.

According to raw data from the NIBRS, drug-related incidents are down 23% since 2010, based on a 53% drop in marijuana-related incidents....

Marijuana distribution charges for young men of color did not increase, to the relief of racial justice advocates wary of a ‘net-widening’ effect following legalization. The black rate for distribution incidents dropped from 87 per 100,000 in 2012 to 25 per 100,000 in 2014.

Racial disparities for still-illegal and mostly petty charges persist for black people when compared to white people, primarily due to the specific increase of charges for public use combined with the disproportionate rates of police contact in communities of color. The marijuana arrest rate for black people in 2014 was 2.4 times higher than the arrest rates for white people, just as it was in 2010.

The report also reveals a decline in synthetic marijuana arrests, presumably because people are less likely to use synthetic marijuana when marijuana itself is no longer criminalized.

“It’s heartening to see that tens of thousands of otherwise law-abiding Coloradans have been spared the travesty of getting handcuffed or being charged for small amounts of marijuana,” said Art Way, Colorado State Director for the Drug Policy Alliance. “By focusing on public health rather than criminalization, Colorado is better positioned to address the potential harms of marijuana use, while diminishing many of the worst aspects of the war on drugs.”

“The overall decrease in arrests, charges and cases is enormously beneficial to communities of color who bore the brunt of marijuana prohibition prior to the passage of Amendment 64,” said Rosemary Harris Lytle, Regional Chair of the NAACP. “However, we are concerned with the rise in disparity for the charge of public consumption and challenge law enforcement to ensure this reality is not discriminatory in any manner.”

“What is often overlooked concerning marijuana legalization is that it is first and foremost a criminal justice reform,” said Denise Maes, Public Policy Director for the ACLU of Colorado. “This report reminds us of how law enforcement and our judiciary are now able to better allocate time and energy for more pressing concerns.”

Thursday, March 12, 2015

"Will Patrick Kennedy and SAM come out in support of the CARERS Act?" and other highlights from MLP&R

The question title of this post is the question I ask in this lengthy new post from Marijuana Law, Policy & Reform. I have a lot of respect for the leading group opposing significant marijuana reform, Smart Approaches to Marijuana (which Patrick Kennedy helped start) because SAM proclaims repeatedly a commitment to charting a "middle road between incarceration and legalization [to provide a] commonsense, third-way approach to marijuana policy is based on reputable science and sound principles of public health and safety" (emphasis added). In addition, the SAM group advocates for "rapid expansion of research into the components of the marijuana plant for delivery via non-smoked forms" and a special FDA reform that "allows seriously ill patients to obtain non-smoked components of marijuana." My post at MLP&R explains why I think the stated commitments of Patrick Kennedy and SAM should result in them supporting expressly and vocally the a bipartisan federal medical marijuana reform bill introduced this week by Senators Rand Paul, Cory Booker and Kirsten Gillibrand known as the CARERS Act.

As detailed below, in addition to providing lot of CARERS coverage, there are lots of other recent posts of note at MLP&R that sentencing fans may want to check out:

Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.

Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep. Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair. Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years. Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.

The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:

Allow states to legalize marijuana for medical use without federal interference

Permit interstate commerce in cannabidiol (CBD) oils

Reschedule marijuana to schedule II

Allow banks to provide checking accounts and other financial services to marijuana dispensaries

Monday, March 09, 2015

Bipartisan federal medical marijuana bill to be introduced Tuesday

As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:

In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.

The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.

The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....

In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.

Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.

Wednesday, March 04, 2015

This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes. Here are the details:

Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.

The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.

U.S. District Court Judge Thomas Rice set sentencing for June 10.

The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."

However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.

Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.

"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.

On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.

Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"

The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.

The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.

Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....

Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.

I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).

Friday, February 27, 2015

So many modern marijuana reform stories, so little time (but lots of space at MLP&R)

As briefly noted in a prior post, today I have been attending and participating in the first ever Tribal Marijuana Conference. In part because the conference is so well-conceived and in part because the issues are so dynamic and multi-faceted, I have learned a lot on many fronts relating both to modern tribal law and the many fascinating legal, social and political issues that modern marijuana reform necessarily raises (some event basics here via MLP&R). Though I am not able to process all the issues discussed today, let alone effectively blog about them all, I will close my work week by just linking to some recent posts now up at Marijuana Law, Policy & Reform:

The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.

The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....

The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.

“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”

There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.

Tuesday, February 17, 2015

Hot action during a cold February concerning marijuana law, policy and reform

Though it has not been too long since my last round-up of notable new posts from Marijuana Law, Policy and Reform, lots of recent action in the field may be of interest to regular readers of this blog:

Friday, February 13, 2015

Is a federal judge about to declare unconstitutional federal marijuana law? And then what?

The question in the title of this post is prompted by this Reuters report on an on-going federal criminal trial in California. Here is why:

A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.

Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.

"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.

The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.

In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.

Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.

But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."

Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.

Saturday, February 07, 2015

Early February highlights from Marijuana Law, Policy and Reform

Though it has not been too long since my last round-up of notable new posts from Marijuana Law, Policy and Reform, I have been posting various topics that may be of interest to regular readers of this blog:

Sunday, January 18, 2015

Long weekend highlights from Marijuana Law, Policy and Reform

Though it has only been about ten days since I last provided a round up of notable new posts from Marijuana Law, Policy and Reform, an important new report from the RAND Corporation along with lots of other cannabis commotion calls for another link review:

As hinted above, I think this big new RAND report seeking to take stock of the potential benefits and costs of various marijuana reform options for Vermont and other states is a must-read for anyone concerned about marijuana reform (pro or con). Here is a paragraph from the report's abstract:

The principal message of the report is that marijuana policy should not be viewed as a binary choice between prohibition and the for-profit commercial model we see in Colorado and Washington. Legalization encompasses a wide range of possible regimes, distinguished along at least four dimensions: the kinds of organizations that are allowed to provide the drug, the regulations under which those organizations operate, the nature of the products that can be distributed, and price. These choices could have profound consequences for health and social well-being, as well as job creation and government revenue.

Thursday, January 08, 2015

Early 2015 highlights from Marijuana Law, Policy and Reform

In this recent post, I called 2014 the most interesting and dynamic year in modern history for reform and debate over marijuana laws and policies and then provided some 2014 highlights from my Marijuana Law, Policy & Reform blog. Even though 2015 is barely a week old, the round up below of notable new posts from MLP&R highlights that the buzz over marijuana policy is likely only to grow in the weeks and months ahead:

Wednesday, December 31, 2014

It seems fair to call 2014 the most interesting and dynamic year in modern history for reform and debate over marijuana laws and policies. It would be impossible to completely summarize the "year in pot" in one post, but linking here to some seasonal highlights from Marijuana Law, Policy & Reform perhaps provides at least a flavor of what has transpired on the cannabis front:

Friday, December 19, 2014

As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution." I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma. And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court.

This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug. Here are passages from the filing to that end:

Congress has classified marijuana as a Schedule I drug. 21 U.S.C. § 812(c). Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....

Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”

There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.

Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.

I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.

Thursday, December 18, 2014

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution." Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Wednesday, December 17, 2014

Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?

As reported in this post yesterday, an astute lawyer in California sought (and, I now know, obtained) a significant postponement of his client's scheduled federal marijuana sentencing based on a provision in H.R. 83, the 1700-page Cromnibus spending bill, which directs the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes. Specifically, Section 538 of the Cromnibus states, in relevant part:

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Though this provision (which was officially signed into law by President Obama on Tuesday) is rightly being hailed as historic, what exactly Section 538 of the Cromnibus means formally and functionally for the Department of Justice and federal marijuana prohibition is anything but obvious or clear. For starters, this provision is a funding directive to DOJ, not a formal restriction on DOJ activities, and it is unclear how such a provision is to be administered or enforced. Moreover, this provision plainly does not provide a formal right or even permission for individuals under federal law to be involved in the "use, distribution, possession, or cultivation of medical marijuana." Indeed, given that federal law currently has marijuana listed as a Schedule I drug, the very use of the term "medical marijuana" in this Section 538 of the Cromnibus is somewhat oxymoronic as a new phrase in the federal legal nomenclature.

That all said, the enactment of formal federal law ordering that DOJ not use funds to prevent the implementation of state medical marijuana laws clearly means something significant not only in states that have medical marijuana laws but throughout the nation. In particular, as the question in the title of this post is meant to connote, I think this congressional approval (of sorts) of state medical marijuana laws should have a tangible (and perhaps significant) impact on any and all federal marijuana sentencings scheduled for the weeks and months ahead.

The specific instructions of 18 U.S.C. § 3553(a) tells federal judges that they must consider at sentencing, inter alia, "the nature and circumstances of the offense" as well as the "need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Even before the passage of Section 538 of the Cromnibus, I thought it was appropriate for a judge at a federal marijuana sentencing to consider based on these provisions a defendant's claim that he was in compliance with state medical marijuana laws. But DOJ in the past could respond by reasonably asserting that Congress would not want a federal judge for federal sentencing purposes to inquire into any claims of state-law compliance.

Now that Section 538 of the Cromnibus is official federal law, I believe every federal judge at any future federal marijuana sentencings should feel duty-bound to examine the particulars of a defense claim of compliance with state medical marijuana laws. In light of what Congress enacted, consideration of claimed compliance with state medical marijuana laws seems essential to "promote respect for the law" as well as to stake proper stock of "the nature and circumstances of the offense" and "just punishment for the offense."

Moreover, I think some viable sentencing arguments might now be made based on Section 538 on behalf of some federal marijuana defendants even in the 18 states that have not yet enacted medical marijuana reforms. If a federal defendant can reasonably assert, even in a non-reform state, that he was (mostly? somewhat? a little?) involved in distribution of marijuana for medical purposes, he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions.

Critically, I am not contending (yet) that Section 538 of the Cromnibus must or even should have a direct and substantial impact on federal marijuana sentencings in reform or non-reform states. But I am contending that, thanks to Section 538 of the Cromnibus, there are now a lot more federal sentencing issues that need to be subject to a lot more thought before federal judges move ahead with the roughly 100 federal marijuana sentencings that take place throughout the US every week.

In sum, to answer my own question in the title of this post, I would say simple YES.

Tuesday, December 16, 2014

Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws

California Attorney Ronald Richards today sent me a copy of a fascinating emergency motion he filed this week that seeks a postponement of his client's scheduled federal marijuana sentencing today. Here are excerpts from the four-page memorandum in support of the motion (which can be downloaded below) which highlights why I find it fascinating:

Rarely in any counsel’s career has he or she had to file an emergency motion. However, in the world of marijuana laws, the landscape keeps changing; this time, on a historic level. On Saturday night, the United States Senate voted to approve H.R. 83. This is a 1696 page spending bill. In the bill, section 538 forbids the use of money by the Department of Justice for interfering with State laws that allow cultivation of marijuana....

In this case, if the Department of Justice is mandated to not spend any money on interfering with lawful marijuana cultivations implementing state law, the raids, the seizures, and the federal prosecution will come to a halt in California. In addition, if the scheduling is attacked by the litigation in the Eastern District and changed, there are just too many signals that the 77 years of marijuana prohibition may be coming to an end. At least, there is not a direct policy mandate from Congress. It is no different than a highway withholding funding to keep speeds under 80 MPH or at 55 MPH during the energy crisis....

If this bill is signed by the President, which all indications are that he will sign it or the government will shut down, it will become law and policy. The Department of Justice could not in either the spirit or the letter of the law allocate any further staff, investigation, or budget to continue to prosecute this case. Furthermore, all future prosecutions of legal California cultivators would cease to exist....

Based upon the historic passage by the House and the Senate of H.R. 83, the defendant requests a 90 day adjournment of his sentence. If the bill becomes law, he will move to withdraw his plea or file a stipulation to that effect with the government. It would be unfair for him to be burdened with a felony conviction and incarceration when in just two weeks, all the current cultivators in this State would enjoy the new found relief provided by the Congressional mandate.

"Survey: Teen marijuana use declines even as states legalize"

The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws. Here are the basics:

Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.

"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.

After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.

Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.

Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.

Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."

Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....

Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....

"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."

With all due respect to the revered Sentencing Law and Policy blog, this year we wanted to showcase Ohio State law professor Douglas Berman's latest. Now that marijuana is legal for recreational purposes in Alaska, Colorado, Oregon, Washington state and Washington, D.C, new legal issues are sprouting up. Berman points readers to news coverage and podcasts discussing the mainstreaming of marijuana and its legal ramifications.

As I have noted in the past, it is an honor just to be nominated. I am especially hopeful that the ABA Journal's recognition serves as yet another marker of the importance and legitimacy of serious discussion of the many law and policy issues surrounding modern marijuana reform movements. Also, my occasional co-bloggers Professor Alex Kreit and Professor Rob Mikos deserve credit and thanks for helping to elevate the substance and style of MLP&R.

Wednesday, November 12, 2014

Federal judge wonders if marijuana sentencing should be impacted by state reforms

As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:

U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."

"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.

Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.

"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?

Wednesday, November 05, 2014

Awaiting results from the Last Frontier, marijuana reform initiatives getting majority support

I am about to call it a night now that a few hours have passed since Election Day 2014 ended, but I am eager to note before I do that marijuana reform had a pretty good day at the polls. A legalization initiative won big in DC, and another won confortably in Oregon, and a medical marijuana initiative garnered 58% of the vote in Florida though did not make the 60% level needed to become law. And, in the Last Frontier, a legalization initiative is leading as of this writing. For all the details and some early coverage, check out posts and links Over at Marijuana Law, Policy & Reform:

Tuesday, November 04, 2014

Will Election 2014 speed up or slow down the marijuana reform movement?

This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot:

There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana. In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana. Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.

While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream. The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.

At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016. And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project. “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz. “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”

Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.

Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:

Sunday, November 02, 2014

Interesting review of the (too cautious?) work of California's Attorney General

The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional. Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.… [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands. "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview. She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy. She also has created units to focus on cyber-crime and cyber-privacy. In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights. In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed. He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law. If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court. If she decided against an appeal, the death penalty in California would probably end. "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division. Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris. "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

Monday, October 27, 2014

Notable new Cato working paper examines "Marijuana Policy in Colorado"

Dr. Jeffrey Miron, who is director of economic studies at the Cato Institute and director of undergraduate studies in the Department of Economics at Harvard University, has just produced this significant new Cato working paper titled "Marijuana Policy in Colorado." The paper is relatively short, though it includes lots of data, and here is its Executive Summary and its closing paragraphs:

In November 2012, voters in the states of Colorado and Washington approved ballot initiatives that legalized marijuana for recreational purposes. Alaska, Oregon, and the District of Columbia are scheduled to consider similar measures in the fall of 2014, and other states may follow suit in the fall of 2016.

This paper provides a preliminary assessment of marijuana legalization and related policies in Colorado. It is the first part of a longer-term project that will monitor state marijuana legalizations in Colorado, Washington, and other states.

The conclusion from this initial evaluation is that changes in Colorado’s marijuana policy have had minimal impact on marijuana use and the outcomes sometimes associated with use. Colorado has collected non-trivial tax revenue from legal marijuana, but so far less than anticipated by legalization advocates....

The evidence provided here suggests that marijuana policy changes in Colorado have had minimal impact on marijuana use and the outcomes sometimes associated with use. This does not prove that other legalizing states will experience similar results, nor that the absence of major effects will continue. Such conclusions must await additional evidence from Colorado, Washington, and future legalizing states, as well as more statistically robust analyses that use non-legalizing states as controls.

But the evidence here indicates that strong claims about Colorado’s legalization, whether by advocates or opponents, are so far devoid of empirical support.

Friday, October 24, 2014

Election season round-up of posts on pot politics from Marijuana Law, Policy and Reform

For various reasons and in various ways, I find the politics of modern marijuana reform even more interesting than its policies and practicalities. Consequently, a number of my recent posts at Marijuana Law, Policy and Reform have focused on political developments and discourse in those states with significant reform proposals on the ballot in 2014. As this election season now kicks into its final stretch, I thought it useful to collect some of these posts in this space:

As time and energy permits, I am hoping soon to start a series of posts on pot politics circa 2014 over at Marijuana Law, Policy and Reform in order to explain why I think the results of this election season in a Alaska, Florida and Oregon are likely to have a huge impact on marijuana policy and national politics in the coming years.